Banking & Insurance

…………………….A…………………….

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The facts originating this appeal appear to me straight forward. From the records it is evident that the instant quarrel between the parties arose from an insurance deal between two friendly establishments that unfortunately turned sour. The facts as narrated by the appellants are that the appellant, A.D.I.C Ltd an Insurance company, engage in Marine, Hull and Car Insurance business, while the respondent on the other hand (Zumax Nigeria Ltd) owns vessels and barges, and in the course of its business, offers his vessels to oil companies for their field and engineering services. The two parties to this appeal, entered into a business relationship in the year 1991, and in the course of that relationship, appellant provided insurance cover for the respondent’s motor vehicles and vessels, two of which are the MV Ruth and MV Stella. It is further stated that the respondent adopted the practice of paying the premiums on all items insured with the appellant, in a fleet or group account kept with the appellant.
The plaintiff continue to say that on the 5th of March, 1993 Respondents paid the sum of two million naira to the defendant as premium in respect of its vessel M.V Ruth (which is in contention), and a receipt issued in respect of the payment made. Plaintiff subsequently paid another two million naira on the 14th of July, 1993, and thereafter another one million naira on the 16th July, 1998.
Sadly however on the 7th of July, 1993, the vessel M.V. Ruth was involved in an accident and this accident by the M.V Ruth was reported to the appellants. On being notified of the accident, and presumably, the respondents having approached the appellants to settle their liability, Appellants contended that as at the time of the accident, the plaintiff had not fully paid the premium on the vessel M.V. Ruth, and therefore the contract void, and respondent not liable to be indemnified. This turn of events remained unsettled and led the respondents to approach the lower Court, vide a writ of summons filed on the 21st of September, 1994. In the further amended statement of claim dated the 19th of May, 2010, the respondent claimed against the Appellant, the following reliefs:
1. Costs of Spare Parts for Repairs to Plaintiff’s work Boat “MV RUTH … US$451,451.41
2. Actual Cost of Local Repairs to Plaintiff’s Nos. 94027/02 and 94055/02 of 30/4/94 and 25/5/94 respectively from Globestar Engineering Service Nigeria Limited ….N1,806,055.64
3. Interest on the sum of US$ 451,451.41 and on the sum of N1,806,055.64 at the rate of 15% from 1/1/94 until payment.
4. Loss occasioned by loss of contract due to defendant’s default at US$49,500 per day from 1st of January 1994 , US$41,719,500.00
5. Cost of repairs and replacement of leg pad MV Stella…N200,000.00
Total US$42,170,951.41 ,N3,806,055.64
6. Interest on the judgment sum at the rate of 10% per annum from the date of judgment until the judgment sum is fully liquidated.
It was the Plaintiff’s case before the lower Court, that the defendant (now appellant) issued marine, hull and cargo Insurance policy on M.V Stella and M.V. Ruth. The policies, particularly in respect of the MV Ruth, covered the period the 9th of September, 1992 to the 8th of September, 1993, and valued at 44 million naira. The defendant as earlier stated contended that as at the time the MV Ruth had the unfortunate accident, the Respondent had not paid the premium on the insurance of this vessel.
Issues having been joined and at the end of evidence taking, both oral and documentary, the Court found that the respondent had a valid contract of insurance agreement with the appellant, in respect of M.V. Ruth, and proceeded to award the respondents claim in the sum of $451,451.41 dollars for spares, and the cost of repairs.
Dissatisfied with the judgment of the lower Court, the defendant (now appellant) caused a Notice of Appeal, predicated on four grounds to issue against the said judgment, praying that the decision of Abutu J. of the Federal High Court Lagos decided on the 17th of February, 2011 be set aside.
In the Appellants brief of argument settled by Olumide Aju and from the grounds of Appeal raised, four issues were distilled. The issues which can be located at page 4 of the brief are as follows:
1.Whether there was evidence before the trial Court upon which the learned trial judge could validly reached his decision that the premium on the MV Ruth was paid by the Respondent.
2. Whether there is a valid contract of insurance in respect of the MV Ruth upon which

…………………….B…………………….

the Respondent can enforce its claims on the vessel in this matter.
3. Whether the trial Courts decision that the Appellant was liable to the sum of US$451,451 and the naira award based on the sum as proper.
4. Whether the contract of insurance in respect of the MV Ruth ought not to have been voided for misrepresentation and non disclosure of material facts.
With respect to the appellant’s first issue, whether there was evidence upon which the learned trial judge could validly reach his decision, that the premium on the M.V. Ruth was paid by the Respondent, learned counsel submitted that the decision of the learned trial judge which found the appellant liable to the respondent in respect of the contract of insurance on the MV. Ruth is based on a wrongful evaluation of evidence. He contended that a proper evaluation of the evidence would reveal that as at the time the vessel MV. Ruth had the accident; the premium on the vessel had not been paid. He alluded to the assessment of evidence by the trial judge at pages 460 to 462, contending that the assessment was wrongful, because DW1 never testified to the effect that plaintiff paid the premium to the tune of N5 Million Naira at the time of the accident, and consequently the finding that;
“there be no evidence as to order the eight policies were issued having regard to the evidence of DW1 that about Five Million Naira had been paid by the plaintiff before the accident and the insurance of the policy which having regard to the evidence of DW1 and DW2 could not have taken place before the payment of premium, I found that the premium in respect of MV Ruth was part of the sum of Five Million paid in respect of the eight policies before the accident.
was wrongful. He remarked that the payment of the sum of Five Million Naira is reflected in three exhibits i.e. exhibits 4, 4a and 4b, and the trial Court which considered the exhibits in its judgment failed to ascertain the exact dates the payments were made before reaching its decision. It was his further contention that had the trial judge carefully examined exhibits 4, 4a and 4b, the total sums evidenced therein would have shown that only exhibit 4 was paid before the accident, and exhibits 4a and 4b made within nine days after the accident in an effort to settle the premium obligation on M.V Ruth and other policies.
Learned counsel still on the issue, argued that the trial Judge failed to properly examine the evidence before him in the order in which the various certificates were issued to, and when the premiums on the issue were redeemed, contrary to his findings.
He referred to the independent evidence of the auditor contained in exhibit 24 showing the various insurance policies with regards to the date of entry debit/credit note number, period covered and the amount involved as shown by appendix 1 of exhibit 24, wherein it was stated by DW2 in evidence, that the plaintiff was owing the defendant over three million naira which sums were hurriedly covered by exhibits 4a and 4b, nine days after the incident. He maintains that had the trial Judge properly evaluated the evidence before it, it would have arrived at the conclusion that the respondent had not paid the premium on MV Ruth when the accident occurred. He submits in line with the authority of Akpan vs U.B.A. Plc (2003) 6 NWLR (pt 816) p. 27 at 298 that improper evaluation of evidence by a trial Court would give an appellate Court the power to review the judgment given.
On his second issue, whether there was a valid contract of insurance in respect of M.V Ruth upon which the respondent can enforce its claims on the vessel in this matter, learned counsel submitted that there was no valid contract of insurance between the appellant and the respondent in respect of the vessel MV Ruth as at the time of the accident to entitle the respondent to judgment in respect of the claims made with respect to that vessel.
He submitted that the Court misconceived the requirement of the law to the effect that an advance payment of premium is a condition precedent to a valid contract of insurance stated in Section 50 of the Insurance Act 1997, and referred to the case of Ajaokuta Steel Co Ltd vs. Corporation Insurance Ltd (2004) 16 NWLR (pt 599) 369; and Leadway Assurance Co Ltd vs J.U.C Ltd (2005) 5 NWLR (Pt. 919) 539. He submitted that the holding of the trial judge at page 461 of the records was totally in error, and therefore urged this Court to hold that there was no valid enforceable contract of insurance in respect of the vessel MV Ruth between the parties.

…………………….C…………………….

On the third issue, whether the trial Court’s decision that Appellant was liable to the sum of US $451,451 and the Naira award based on the sum was proper, it was submitted for the Appellant that the trial Judge was in error in converting the dollar claim to Naira at the exchange rate of N150 to one dollar, when there was no evidence as to the rate of exchange, and when the claim of the respondent was a dollar claim. He referred to the case of Pascutto vs. Adecentro Nig. Ltd.1997 11 NWLR (Pt. 529) 467 at 486, arguing that the parties never contemplated any claim in dollars, the premium having been calculated in Naira. He urged the Court to set aside the award made, being a relief set up by the Court and awarded without evidence or submissions from the parties.
On the last issue, whether the contract of insurance in respect of the MV. Ruth ought not to have been voided for misrepresentation and non-disclosure of material facts; the learned counsel submitted that the Respondent failed to disclose the fact that the vessel MV Ruth was once involved in an accident as pleaded in Paragraph 17(II) of the Amended Statement of defense, and argued that the fact of the repair of the vessel was admitted in evidence, submitting the respondent by law is obligated to make a full and frank disclosure of all material and relevant facts to the risk to be insured, failing which the contract is rendered void. The cases ofCater vs. Boetnn 1776 3 Burr, 1905 per Lord Mansfield, and Nigeria Insurance Corporation of Nigeria vs. Power & Industrial Engineering Co, Ltd. (1986) 1 NWLR (Pt. 14) 1 were cited in support of the contention. He finally urged the Court to allow the appeal and to set aside the judgment of the lower Court.
And in the Respondents brief of argument settled by Chief M.A. Agbamuche, three issues were distilled for the determination of this appeal. The issues located at page 3 of the brief, reads as follows:
1. Whether there was a valid contract of insurance between the Plaintiff/Respondent and the Defendant/Appellant in respect of the vessel MV RUTH insurance premium having been duly paid (Ground 1 and 2 of the grounds of Appeal).
2. Whether the trial Court’s decision that the Appellant was liable in the sum of US$ 451,457.45 and the naira award based on this sum was proper and justiciable in law? (Ground 3)
3. Whether the contract of insurance in respect of the MV Ruth ought to have been voided for misrepresentation and non-disclosure of material fact? (Ground 4).
On the first issue, learned counsel submitted that based on the evidence adduced before the lower Court, which the Court believed, Eight (8) vessels were insured with the defendant, and all the policies of the plaintiff in respect of the vessels dealt together in the same account. That a relationship existed between the parties, that all payments of premium were to be paid in one account. He posits that a perusal of the receipts issued for the payment of premium demonstrated that the payments were for Marine Insurance Policy with no one single vessel singled out as beneficiary of one payment. He continued to say that the premium for MV Ruth was calculated at N 1, 334.861.20, whereas the money paid as premium into the joint account as at March 1993 was N2 Million naira.
He submits that since there existed an agreement that the payments be made as a group, the payment of N2,000,000.00 premium into the group account means that the premium for MV Ruth had been paid. With regard to Exhibit 24, counsel submits that not only did the trial Court find no merit in the contention that payment of premium were applied in the order in which the policies were issued, but that the exhibit written when parties, were locked in litigation was in admissible. He submits that there being a definite finding of fact by the trial Court based on the evidence before him, that the premium in respect of MV Ruth having been paid before the accident, it cannot be denied that there was a valid contract of insurance between the parties before the occurrence of the accident. He posits on the authority of Abisi vs. Ekwealor (1993) 6 NWLR (Pt. 302) 643 that the evaluation of evidence is primarily that of the Court of trial, which is not lightly interfered with, and urged the Court to resolve the issue in its favor.
On the 2nd issue, learned counsel submits that the basis for the award of the insured sum of forty four million naira is his acceptance of the evidence of DW1 and exhibits 6, 7 and 8, and further submits that the lower Court applied the correct principles of the law in the assessment of the damages awarded.

…………………….D…………………….

He referred to the case of Saeby Dernstoberi A/S vs. Olaogun Enterprises Ltd. NWLR (Pt.637) 128 at 145-146 to the effect that the Nigerian Court can assume jurisdiction to determine cases where foreign currencies are involved which can be converted for the purpose of enforcement, positing that a Court can take judicial notice of the prevailing value of the naira and does not need an official of the Central Bank to establish it.
On the third issue, it was the contention of learned counsel, referring to the judgment of the lower Court at page 463 of the records, that it was not the case for the defendant that the vessel had a problem with its legs. He states that the lower Court made a finding of fact with respect to the issue, and therefore the duty of the appellant to prove non-disclosure. In conclusion, the learned counsel submits that the learned trial judge having thoroughly examined the facts and evidence placed before him during trial, and made findings of fact, the appellate Court would be slow to disturb such findings and conclusions. He prayed that the appeal ought to be dismissed and the judgment of the Court affirmed.
I have in the circumstance studied the records of proceedings and the submissions of the learned counsel on both sides with regards to the issues conversed, and my humble opinion is that the submissions by the respondent is directly in response to the issues agitated upon by the appellant. Against that background therefore, I find it expedient approaching the resolution of the appeal from the issues formulated by the appellant.
RESOLUTION
I understand the substance of the appellants complaint with regards to this issue as being the lower Court’s decision which found the appellant liable in respect of the contract of insurance with regards to the vessel MV Ruth. The arid question which must be answered is whether the premium on the vessel MV Ruth was paid before the occurrence of the accident. The divergent positions of the parties appears clearly to be that while appellants are contending that as at the time of the accident of the MV Ruth, the premium was not paid, respondents insist that same was actually paid as found by the lower Court. In resolving the issue, the lower Court at page 460 of the records reasoned that:
“The DW1 gave evidence on the procedure for entering into a contract of insurance. He concluded that if there is no payment of premium there is no cover. The evidence of DW2 tallies with the evidence of DW1. The evidence on both sides is that on the whole Plaintiff insured eight of its vessels with the defendant. The plaintiff had a fleet account with the defendant in respect of eight vessels. At the time of the accident according to the DW1 the plaintiff had paid premium in respect of the vessels to the tune of five million Naira. The evidence of the DW2 is that the premiums paid into the fleet account were applied in the order the policies were issued. There is before me in this case neither any averments in the pleadings nor any iota of evidence in respect of the order the policies were issued. The insurance policy No. MH.04/92/L was issued on the 20th of October, 1992 to cover the period between 9th September, 1992 and 8th September 1993 in respect of the vessel MV Ruth. The agreed premium was N1,334,861.20. there being no evidence as to the order the eight policies were issued, having regard to the evidence of DW1 that about N5 million had been paid by the plaintiff before the accident and the insurance of the policy, which having regard to the evidence of DW. 1 and DW. 2 could not have taken place before the payment of the premium, I find that the premium in respect of MV Ruth was part of the N5 million paid in respect of the eight policies before the accident.
What is discernible from the above reasoning is that the policy of the vessel, MV Ruth having been issued on the 20th of October, 1992 covering the period 9th September, 1992 to the 8th of September, 1993, and flowing from that, it is common ground that the vessel MV Ruth was involved in the accident on the 7th day of July, 1993, which is the period covered by the insurance policy No. MH.O4/92/L issued on the 20th of October, 1992. Appellants now harp on the decision of the lower Court where it stated that the premium in respect of the vessel MV Ruth having been shown to have been paid as shown by exhibits 4, 4a and 4b before the occurrence of the accident, there was a valid contract of insurance; pointing out that exhibits 4a and 4b were actually paid after the accident.

…………………….E…………………….

Now Section 50 (1) of the Insurance Act, stipulates that:
1. The receipt of an insurance premium shall be a condition precedent to a valid contract of insurance and there shall be no cover in respect of an insurance risk, unless the premium is paid in advance.
2. An insurance premium collected by an insurance broker in respect of an insurance business transacted through the insurance broker shall be deemed to be premium paid to the insurer involved in the transaction.
I subscribe to the view expressed in the case of Unitrust Insurance Co. Ltd vs. Ambico Sendirian Nigeria Ltd (2012) LPELR 15417 (CA) per Pemu JCA, that by the stipulations of Section 50 (1) of the Insurance Act, the payment of premium is not only a condition precedent, but that there shall be no cover in respect of an insurance risk unless the premium is paid in advance. See also Shoreline Liftboats Nigeria Ltd & Ors vs. Premium Insurers Brokers Ltd & Ors (2012) LPELR 9795-(CA) per Agbo JCA; Industrial and General Insurance Company Ltd vs. Kechinyere Adogu (Mrs) (2009) LPELR- 15093 (CA) per Aji JCA.
The presumption that flows from this state of the law, is that where a policy cover has been issued to the insured, in our case the vessel MV Ruth, it is presumed that the premium has been fully paid and in advance. In other words, although evidence points to the fact that exhibit 4 was paid before the accident, and exhibits 4a and 4b paid after the accident, and the payment of exhibit 4 sufficient to settle the premium of the MV Ruth, and policy cover duly issued, the lower Court was right to draw from the normal course of doing things, and of course the terse provisions of Section 50 (1) of the Act, that the contract of insurance with regards to the vessel MV Ruth followed due process. In this regard, the examination of exhibits 4,4a and 4b, as well as exhibit 24 cannot dislodge that position. Indeed a Court of trial has the onerous duty of evaluation of the evidence laid before him, which duty he must perform with utmost care and attention. See Okpala vs. Nepa (2003) 14 NWLR (pt.840) 383 at 410. In the instant case, it is vivid that a policy cover having been issued to cover the vessel MV Ruth, the only conclusion that can be drawn there from is that Section 50 (1) of the Insurance Act, as to the payment of premium was complied with in full and in advance.
This issue is determined against the appellant.
From the resolution of issue one, it follows that the second issue, which is whether there was a valid contract of insurance between the appellant and the respondent with regards to the vessel MV Ruth, cannot be otherwise, the simple reason being that, the receipt of an insurance premium conclusively determines the validity of the contract between the parties.
Having resolved that premium was paid on the MV Ruth, a binding contract was established between the parties, making the appellant liable as found. This issue is also determined in favor of the respondent.
The appellant’s third complaint is premised upon the lower Courts judgment awarding the sums of USD 451,451 and the Naira equivalent. Alluding to the trial Court’s holding in the judgment, where he stated:
“The sum of USD 451, 451.41 when converted to the naira currency at the current rate of exchange of N150 to 1 USD is N67, 717, 650 which is in excess of the insured amount of N44 million. As stated earlier in this judgment, the plaintiff cannot recover more than the sum assured. The plaintiff total entitlement under the policy number MH.04/92/L is limited to the insured sum of N44 Million. In the result, the sum of N44 Million is hereby awarded to the plaintiff being damages for cost of spare parts and repair of the vessel MV Ruth.
The argument raised by the appellant is with regards to the conversion of the dollar amount to its naira equivalent without regard to pleadings and the evidence, which was not before it. He relied on the authority of Pascutto vs. Adecentro Nigeria Limited (supra), contending that there was no basis for the acceptance of any evidence in dollars which was not anticipated nor contemplated in the contract of insurance.
It has long been settled that a Nigerian Court has the ability and the power in its discretion to award damages or costs in foreign currency. See the cases of Salzgitter Stahl GMBH vs. Tunji Dosunmu Industries Ltd (2010) 11 NWLR (pt. 1206) 589; Afribank Nig. Plc vs. Akwara (2006) 5 NWLR (pt. 974) 619; Harka Air Services (Nig) Ltd vs. Keazor (2006) 1 NWLR (pt. 960) 160; Teju Investmant and Property Company Limited vs. Alhaja Moji Subair (2016) LPELR 40087 (CA) and Saeby Jernstoberi M.F.A/S vs. Olaogun Ent. Ltd (1999) 14 NWLR (pt. 637) 128 @ 146amongst many others.

…………………….F…………………….

At page 203 of the records and in the respondent’s amended statement of claim, it is evident that plaintiff claimed amongst others:
1. Cost for spare parts for repairs to plaintiffs work boat MV Ruth……. USD 451, 451.41
2. Actual cost of local repairs to the boat as per invoice Nos. 94027/02 and 94055/02 of 30/4/94 and 25/5/94.
Respectively from Globestar Engineering Service Nigeria Limited. …..N1,806,055.64.
And at page 467 of the records, the lower Court proceeded to hold that:
“I accept the evidence of PW I and Exhibits 6, 7, 8 and 8A and on the basis thereof I find that the case has been proved on a balance of probability as required by the law. The sum of USD 451, 451.41 when converted to the Naira currency at the current exchange of N150 to USD 1 is N67, 717, 650.00 which is in excess of the insured amount of N44 Million Naira.
The learned counsel for the appellant is clearly not truthful in stating that the claim and evidence failed to assert the fact that the claim was in foreign currency. I equally sympathize with the respondent’s argument that the trial Court, though ought to have based his calculation on the exchange rate on evidence which ought to have been adduced, but having based his calculation on facts judicially known to him is not enough to avoid the finding and decision on same. I also determine this issue for the respondent.
Lastly is the contract of insurance in respect of the MV Ruth voidable on the reason of misrepresentation and non disclosure of material facts? Iguh JSC in Afegbai vs. AG Edo State (2001) ALL NLR 19, stated and I quote extensively, that:
A fraudulent misrepresentation, whereby the representator has induced the representee to alter his position by entering into a contract or transaction with the representor confers the right to the representee to either maintain an action in damages or repudiate the contract or transaction. In such a case the representee may institute proceedings for the recission of the contract or transaction. He may also set out the fraudulent misrepresentation as a defense to any action instituted for the direct or indirect enforcement of the contract or transaction.
Thus the appellant by paragraph 17 (ii) of the amended statement of defense, raised the issue that the plaintiff did not disclose a material fact relating to the repairs carried out on the vessel MV Ruth, when it was initially damaged, while the vehicle was being imported in to the country. In other words, counsel is alleging that as at the time of the entering of the contract of insurance between the parties, the vessel MV Ruth had defects, which were not divulged to the appellants. Obviously the lower Court considered the appellants allegation in its judgment from pages 463 to 464, to the conclusion that the allegations were not proved. Indeed as stated by the erudite jurist, Oputa JSC, in the case of NICON vs. Power and Industrial Engineering Co. Ltd (1986) 1 NWLR (pt. 14) 1 @ 34, the onus was on the appellant to adduce evidence to prove the alleged non disclosure. These appellants failed to do. Moreover the contract was entered into by the appellants with their eyes wide open aided by their professional surveyors and investigators, they cannot in the circumstance complain just because a risk which they had undertaken to assuage had in fact taken place. This issue is also determined against the appellant.
Hence having determined all the issues against the appellant, this appeal fails and it is hereby dismissed. The judgment of Abutu CJ, in Suit No FHC/L/CS/934/94, delivered on the 7th of February, 2011, is hereby affirmed. Costs of N50, 000.00 are hereby awarded to the respondents.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the Judgment delivered by my learned brother AKAWU BARKA HAMMA, JCA.
I agree with the reasoning and conclusion and I also dismiss the Appeal. I abide with the Order as to costs.
BOLOUKUROMO MOSES UGO, J.C.A.: I read in advance the judgment of my learned brother HAMMA AKAWU BARKA J.C.A. and I agree with his reasoning and conclusion that this appeal lacks merit. In the event, I also dismiss it with costs as ordered by my brother BARKA J.C.A. in the lead judgment.

“Whereof the plaintiff’s claim against the defendant is for the sum of Fifty Million Naira (N50,000,000). The defendant as drawer of Bank certified cheques totaling N4,500,000.00 drawn upon the defendant bank at its Moloney Street Branch, Lagos, payable to the plaintiff and delivered by S. C. O. A. to the plaintiff which said cheques were duly presented for payment on the 12th day of June, 1989, which were dishonoured and although the defendant had due notice thereof by letters dated 8th June, 1989 and 12th June, 1989, respectively, the defendant still refused and or neglected to pay the said cheques.”
(pages 261 -262 of the record)
At the instance of the first respondent herein, the second respondent was joined as a third party in the action. Upon the joinder of issues on the settled pleadings which were, duly, exchanged, the matter went to trial.
From the records, the appellant made the case that, at the instance of the second respondent in this appeal, the first respondent caused to be drawn four bank drafts worth N4. 5 million in its (appellant’s) favour. Sequel to its dishonor of the said drafts, the appellant took out an action against the first respondent claiming not only the value of the cheque, but also interests, charges and general damages.
While the first respondent claimed to have dishonoured the cheques on the instruction of the second respondent, the latters ground for stopping the drafts was because of the absence of consideration from the appellant. Following the trial Court’s dismissal of the claim, the appellant approached the Court of Appeal, Lagos Division (hereinafter, simply, referred to as “the lower Court”) which also dismissed the appeal to it.
Aggrieved by the lower Courts concurrent verdict, the appellant repaired to this Court. It framed two issues for the determination of the appeal, namely:
1. Whether the lower Court was right in upholding the finding of no consideration made by the trial Court in a business transaction, the nature of which he could not decipher, which justified the first respondent (not being a party to the transaction) to refuse to honour its bank certified cheques in spite of the trial Court’s finding that the cheques were not misplaced?
2. Is the Court of Appeal bound by its previous decisions?
In the brief of argument filed on October 11, 2005, the first respondent concreted a sole issue which was phrased thus:
Whether payment of the first respondent bank cheques (exhibits P2 – P5) can be properly dishonoured and countermanded by and on the instruction of the second respondent for lack of consideration in a questionable contract/transaction lacking in consensus ad idem?
For the second respondent, the following two terse issues were put forward, viz,
a. Whether the drafts were countermandable?
b. Whether the Court of Appeal had indeed, ignored its own previous decisions?
My Lords, for their bearing on the fate of this appeal, I am constrained to set out the most crucial views of the lower Court on the substance of the appeal before it. At page 3 of His Lordship’s five -page leading judgment, (page 263 of the record), Ogebe, JCA (as he then was) found (a finding which the appellant did not appeal against) thus: “[t]he issues formulated by the appellant are purely academic and do not go to the substance of the appeal…” (italics supplied for emphasis).
Notwithstanding this circumscription of the substance of the appeal before the lower Court, Ogebe, JCA (as he then was) nevertheless, still endeavoured “to follow the arguments and come to a decision,” (page 263 of the record; page 3 of the 5-page judgment). Upon His Lordship’s summation of the arguments of counsel, he devoted the last three paragraphs of the last page of the five-page judgment, (page 265 of the record), to his views on other matters which, by virtue of the earlier finding that the issues before the Court were purely academic and did not go to the substance of the appeal, went to no issue.
Being very terse, I take liberty to set out His Lordships views. Listen to this:
“It can be seen from Section 75 of the Bill of Exchange Act, Cap 35 of the Laws of the Federation of Nigeria) that any cheque drawn on the bank can be countermanded by the person

…………………….B…………………….

who issued it. In such a case the bank has authority to dishonour the cheque. The appellant has not be (sic) able to cite any Nigerian case in support of his proposition that bank certified cheque is not countermandable.
The trial Court specifically found that the cheques were dishonored on the instruction of the second respondent for failure of consideration. That finding cannot be faulted.
In the result, I find no merit in this appeal and I hereby dismiss it, and affirm the judgment of the lower Court…”
(page 265 of the record)
At the hearing of this appeal on October 11, 2016, counsel for the appellant, Tunde Seriki, adopted the brief of argument filed on August 23, 2005. In the said brief, paragraphs 3.1 – 3.14, (pages 3-6), of the brief were devoted to the arguments on the first issue on the finding relative to the absence of consideration and the first respondent’s refusal to honour its bank certified cheques.
On the second issue, namely, whether the lower Court is bound by its previous decisions, counsel devoted paragraphs 4.1 – 4.13, (pages 6 -9), of the brief. The remaining parts of the brief, paragraphs 5.1 – 6.1, (pages 9 -12), were dissertations on the Bills of Exchange Act, 1990.
J. D. Oloyede, Counsel for the second respondent, adopted the brief filed on January 5, 2006, although deemed properly filed and served on November 29, 2006.
While arguments on issue one were crafted on paragraphs 4.1, (pages 3-5); paragraphs 4.5, (pages 5-8) of the brief were devoted to the second issue.
On his part, K. C. Ahia, who appeared with L. K. Onyemkpa, for the first respondent, devoted paragraphs 3.1, pages 4 – 8 of the brief to the sole issue set out on page 4. More cogently, however, counsel drew attention to the above finding of Ogebe, JCA (as he then was). At the risk of repetition, I shall reproduce His Lordship’s findings here:
“The only relevant issue is the first issue. It reads thus ‘whether drafts are countermandable, whatever the circumstances.’ These issues formulated by the appellants are purely academic and do not go to the substance of the appeal”
(page 263 of the record; italics supplied for emphasis)
Counsel submitted that, sequel to the above finding, any pronouncement thereafter amounted to an academic exercise. He canvassed the view that no competent issues were canvassed in support of the grounds of the appeal filed at the lower Court and, hence, they were deemed abandoned, citing Ogunlade v. Adeleye (1992) 8 NWLR (pt. 260) 408, 419.
He contended that, since the singular issue determined at the lower Court was purely academic in nature, no grounds of appeal, and ipso facto, no issues could arise therefrom. He submitted that it would amount to another voyage in academic exercise if this Court should entertain any issues as formulated from the grounds of appeal.
The two grounds for this submission were that (1) what the lower Court decided was an academic issue which did not relate to the ground of appeal filed at the lower Court and (2) no competent ground of appeal or issues could eventuate from the abandoned grounds of appeal and the issue decided at the lower Court. He invited the Court to hold that this appeal cannot stand as no Court would entertain an issue which may end up as an academic exercise, citing Global Trans Oceanico S. A. v. Free Ent. Nig Ltd (2001) 5 NWLR (pt. 706) 426, 494.
APPEAL, A SUBSISTING ACADEMIC ISSUE
My Lords, it is quite intriguing that notwithstanding the weight of these submissions, counsel for the appellants chose not to file any reply brief just as he did not deem it necessary to appeal against the lower Courts finding that the issues before it were purely academic and, as such, did not go to the substance of the appeal.
In the first place, grave situations, such as is evident in the present appeal, where a reply brief is warranted, has long been settled, Goodwill and Trust Inv. Ltd v. Witt and Bush Ltd. (2011) All FWLR (pt. 576) 517; Harka Air Services (Nig) Ltd v. Keazor (2011) All FWLR (pt. 591) 1402; Dogo v. State (2013) 10 NWLR (PT. 1361) 160; Nidocco Ltd v. Gbajabiamila (2013) 14 NWLR (pt. 1374) 350.
Even then, it is an elementary proposition that findings that are not appealed against remain binding for all times, since they subsist, Okwaranonobi v. Mbadugha (2013) 17 NWLR (PT. 1383) 255; Nwaogu v. Atuna (2013) 11 NWLR (pt. 1364) 117; Atanda V. Iliasu (2013) 6 NWLR (PT. 1351) 529; Uwazurike v. Nwachukwu (2013) 3 NWLR (pt. 1342) 503, until set aside on appeal, Adeyeye v. State (2013) 11 NWLR (pt. 1364) 47.
For good measure, the only option open to the

…………………….C…………………….

appellant, if he wanted this Court to set aside the said finding, was to file a ground of appeal challenging it, Organ v. N. L. N. G Ltd [2013] 16 NWLR (pt 1381) 506. Having failed to do so, it is now too late to contest it, Atanda v. Iliasu (supra).
At the lower Court, the Notice and Grounds of Appeal were couched in the following terms:
“GROUNDS OF APPEAL
GROUND ONE
The learned trial judge erred in law when he held that bank certified cheques are countermandable under S. 75 of the Bill of Exchange Act 35, Laws of the Federation, 1990.
PARTICULARS OF ERROR
(a) The learned trial Judge had held in his judgment that the bank certified cheques Exhibits P2- P5 are not Bills of Exchange under Section 3(1) of the Bills of Exchange Act.
(b) The learned trial Judge having also held in his judgment that bank certified cheques was not defined in the Bills of Exchange Act misdirected himself when he did not follow the decision in the Canadian case of Commercial Automation Ltd v. Banque Provinclale Du Canada 1963 DLR Vol 39 (2D) 316 moreso when he held that Section 167 of the Canadian Bills of Exchange Act is in pari materia with S. 75 of the Nigerian Bills of Exchange Act.
(c) The learned trial Judge also erred and misdirected himself when he refused to be persuaded by the decision in the American case of Daniel Sutter v. Security Trust Company, American Law Reports Annotated Vol. 35, 938.
(d) The learned trial Judge relied on Blacks Law Dictionary for the definition of a Bank Certified Cheques but clearly erred by failing to rely on or adhere to the definition so given;
(e) In the American case of Daniel Sutter v. Security Trust Company, (supra) the Learned trial Judge misdirected himself and held that the case recognizes the right of a drawer of certified cheque to countermand same if the holder is not a bona fide holder for value but has obtained the cheque by ‘fraud’ when he did not find as a fact that the appellant obtained the certified cheques by fraud. The learned trial Judge also omitted to advert his mind to the words ‘before delivery’ in the judgment. The bank certified cheques in this appeal Exhibits P2 – P5 have been delivered to the appellant which has paid it into its account before the countermand and consequent dishonor;
(f) The learned trial Judge failed to avert his mind to the practice and usage in this country that it is only the drawer of a cheque that can get it certified by the issuing bank. Also the banking practice in this country is that bank certified cheques are not countermandable once they have been delivered to the holder or drawee because they are as good as cash.
GROUND TWO
The learned trial Judge erred and misdirected himself when he held that the reasons for the countermand and dishonor of the bank certified cheques are valid and existed in law.
PARTICULARS OF ERROR
(a) The four bank certified cheques which were dishonoured by the first respondent bank were each marked “Cheque Declared Misplaced”. The learned trial judge however found in his judgment that the cheques were not misplaced;
(b) No other reason was written on the faces of the bank certified cheques by the defendant bank for the notice or attention of the appellant as answer for dishonouring the cheques. The cheques were in fact not marked ‘No Consideration;’
(c) Exhibits D1, D2 and D3 which were the countermand notices issued by the 2nd respondent to the first respondent were not made known to the appellant until when they were tendered as exhibits at the Court.
GROUND THREE
The learned trial Judge erred in law when he held that the defendant/first respondent bank could raise the issue of lack of consideration as a defense to this action.
PARTICULARS OF ERROR
(a) The first respondent averred in its first amended statement of defense paragraphs 3 and 9 thereof that it was not a party to the business transaction between the appellant and the second respondent. Therefore the 1st respondent would not know conclusively whether or not there was consideration.
(b) Exhibit D1, D2 and D3 which are the countermand notices upon which the respondent solely relied for dishonoring the bank certified cheques could not and did not constitute proof of their contents viz – Cheques Misplaced and No Consideration. The learned trial Judge himself found as a fact that one of the reasons given in the countermand notices i.e. ‘Cheques declared Misplaced’ was false.
(c) The learned trial Judge held that in third party proceedings, the rights of the plaintiff and the defendant are determined without reference to the defendants claim against the 3rd party.
Therefore, the learned trial judge misdirected himself when he availed the defendant of the defence of lack of

…………………….D…………………….

consideration which was neither pleaded nor canvassed by the defendant/first respondent.
(d) The only witness for the defendant bank did not give evidence in prove of the defense of lack of consideration which the learned trial Judge heavily relied on.
(e) The appellants only witness testified that the appellant gave consideration for the cheques and the defendant/first respondent did not cross-examine the witness. Therefore this statement on oath remained uncontroverted by the defendant. The learned trial judge therefore erred in law by not accepting the uncontroverted evidence that there was consideration.
(f) Not even the 3rd party/2nd respondent gave conclusive evidence in proof of the assertion of lack of consideration.
GROUND FOUR
The learned trial Judge misdirected himself when he failed to hold that the defendant bank was reckless and negligent in dishonouring the four bank certified cheques presented for clearing by the Plaintiff.
PARTICULARS OF ERROR
(a) The defendant bank was under a duty to the plaintiff to pay the cheques notwithstanding the fact that the plaintiff was not its customer in line with the decision in Patrick Abusomwan v. Mercantile Bank of Nigeria Ltd. (1987) 3 NWLR (pt. 60) 196, 208-209.
(b) The defendant bank did not make any independent enquiry about the inscription ‘Cheques Declared Misplaced’ or any other reason contained in Exhibits D1, D2 and D3 despite the fact that the plaintiff/appellant’s solicitors wrote Exhibit P6 to the bank to the contrary.
(c) The bank certified cheques were presented to the defendant bank for clearing twice and the words ‘Cheques declared Misplaced’ written by the bank twice.
(d) The first respondent/defendant bank knew that dishonouring the bank certified cheques was wrong in law and practice which was why it sought and obtained indemnity Exhibit D4 from the 3rd party/2nd respondent.
GROUND FIVE
The learned trial Judge erred and misdirected himself in law when he held that the appellant did not give consideration for the bank certified cheques, Exhibits P2-P5.
PARTICULARS OF ERROR
(a) The learned trial Judge went on a frolic by considering the case of the plaintiff/appellant against the 3rd party/2nd respondent and vice versa since he had held that “the general principle in an action, involving a Third Party Notice is that in the main action, the rights of the plaintiff and the defendant are determined without reference to the defendants claim against the third party.
(b) The learned trial Judge should have restricted himself to the case of the plaintiff/appellant against the defendant/first respondent in the main action and thereafter consider all relevant disputes between the defendant and the 3rd party.
(c) Since the learned trial Judge held that he did not believe both the plaintiff and the 3rd party as to the nature of the transaction between them, then he could not find as a fact whether or not there was consideration.
(d) The issuance and voluntary delivery of the bank certified cheques by Mr. Dominic Roche to the plaintiff’s Financial Director in the latter’s house is prima facie evidence that the plaintiff gave consideration for the cheques.
(e) Since it is the first and second respondents who assert that the plaintiff did not give consideration for the bank certified cheques, the onus is on them to prove what they assert.
GROUND SIX
The learned trial judge misdirected himself by holding that the nature of the transaction between the plaintiff and the 3rd party is not the supply of motor spare parts by the plaintiff to the 3rd party.
PARTICULARS OF ERROR
(a) The plaintiff/appellant through exhibit P1 was able to show that the subject matter of the transaction between it and the 3rd party was the supply of motor spare parts.
(b) The testimony of plaintiffs witness stood uncontroverted by the defendant.
(c) The learned trial judge wrongly allowed his decision to be influenced by fact not pleaded in disbelieving the plaintiff’s claim as to the true nature of the transaction. The learned trial Judge also wrongly relied on evidence he had expunged from the records.
(d) The learned trial Judge failed to make a definite finding as to the true nature of the transaction between the plaintiff and the third party.
GROUND SEVEN
The learned trial Judge misdirected himself by holding that the 3rd party did not need to prove their allegation of forgery beyond reasonable doubt.
PARTICULARS OF ERROR

…………………….E…………………….

(a) The 3rd party through their witnesses denied knowledge of the contents of Exhibits P1.
(b) It was also the evidence of the 3rd party that the signature on Exhibit P1 was forged.
(c) The learned trial Judge found as a fact that the 3rd party relied on the defense of forgery by implication.
(d) It is trite law that an allegation of crime made in civil matter has to be proved beyond reasonable doubt as provided for in Section 137 of the Evidence Act and Adamu v. Kharo (1988) 4 NWLR (Pt. 89) 474, 478.
(e) Having so found that the 3rd party relied on a defense of forgery by implication, the learned trial judge was clearly in error for not rejecting the defense since the 3rd party did not prove their allegation beyond reasonable doubt.
GROUND EIGHT
The judgment is against the weight of evidence.”
(pages 188 -195 of the record)
In the brief of Argument at the lower Court, the appellant concreted the four issues, (pages 214 -215 of the record). In this case, as shown above, the lower Court found that the said issues were purely academic and did not go to the substance of the appeal. For the umpteenth time, hear Ogebe, JCA’s weighty findings:
“The only relevant issue is the first issue. It reads thus ‘whether drafts are countermandable, whatever the circumstances.’ These issues formulated by the appellants are purely academic and do not go to the substance of the appeal…“
(page 263 of the record; italics supplied for emphasis)
As indicated above, the appellant did not challenge this finding through his grounds of appeal, Organ v. N. L. N. G. Ltd (supra). Having failed to do so, it is now too late to contest it, Atanda v. Iliasu (supra); hence, it subsists, Okwaranonobi v. Mbadugha (supra); Nwaogu v. Atuma (supra); Atanda v. Iliasu (supra); Uwazurike v. Nwachukwu(supra).
What is more, as it is well-known, academic issues which are, almost always, hypothetical, do not engage the attention of Courts since they are not the proper fora for their ventilation, Imegwu v. Okolocha [2013] 9 NWLR (pt. 1359) 347; and, above all, they are of no utilitarian value, Abe v. UNILORIN (2013) 16 NWLR (pt. 1379) 183. In effect, this appeal as presently constituted, should not have nudged an inch beyond Ogebe, JCA’s finding that the issue does “not go to the substance of the appeal.”
True indeed, His Lordship’s views, sequel to this categorical finding that the appellant’s issue went outside the compass of the appeal, were tantamount to obiter dicta. As this Court (per Nweze, JSC) explained in Omisore and Anor v. Aregbesola and Ors (2015) 15 NWLR (pt 1482) 205:
“In Legal Theory, an obiter dictum, in contradistinction to the ratio decidendi of a case, is a Judge’s passing remarks which do not reflect the reasoning of the Court or ground upon which a case is decided, Paton and Sawyer, “Ratio Decidendi and Obiter Dictum in Appellate Courts” (1947) 63 LQR 461, 481; Rupert Cross, “The Ratio” in 20 MLR 124-126, A. G. Karibi-Whyte, “The Tyranny of Judicial Precedents”, in (1990) Vol. 3 No.1 Cal. LJ; P. U. Umoh, Precedent in Nigerian Courts (Enugu Fourth Dimension Publishers Ltd, 1984) 208; Nwanna v. FCDA and Ors (2004) LPELR 2102 (SC) 12, F-G; Yusuf v. Egbe (1987) 2 NWLR (pt. 56) 341, Amobi v. Nzegwu [2013] 12 SCNJ 91.”
That is the main snag in this appeal. As every Faculty of Law sophomore is, (or ought to be), aware of, grounds of appeal must relate to the ratio decidendi of the judgment or decision appealed against, Okponipere v. State (2013) 10 NWLR (pt. 1362) 209. In other words, an appeal is usually against the ratio decidendi and generally, not against an obiter dictum, U. T. C. Nigeria Limited v. Pamotei (1989) 2 NWLR (pt. 103) 244; Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 387; Ede v. Omeke (1992) 5 NWLR (pt. 242) 428; Dakar v. Dapal (1998) 10 NWLR (Pt 577) 573.
In consequence of all I have said above, I hold that this appeal, which is not only woven around issues which orbit beyond the compass of “the substance of the appeal,” before the lower Court [see, per Ogebe, JCA (as he then was) at page 263 of the record), but is actually, a complaint against the obiter dicta of the lower Court, (page 265 of the record), must fail, Okponipere v. State (supra); U. T. C Nigeria Limited v. Panotei (supra); Saude v. Abdullahi(supra); Ede v. Omeke (supra); Dakar v. Dapal (supra). I so hold.
I therefore, enter an order disposing it off. Appeal is hereby, dismissed. I affirm the judgment of the lower Court. Parties are to bear their respective costs.

…………………….F…………………….

OLABODE RHODES-VIVOUR, J.S.C.: I read in advance the judgment of my learned brother Nweze, JSC. I am in agreement with it that the appeal should be dismissed. The circumstances of the appeal are such that the merits of the appeal cannot be considered since the appellants arguments are on the obiter dicta of the Court of Appeal, which this Court never considers.
Accordingly, I too dismiss this appeal.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by Chima Centus Nweze and to show my support for the reasoning I shall make some remarks.
The appellant as the plaintiff had sued the 1st respondent as the defendant at the trial Court for the sum of N50 million on the allegation that the defendant as drawer of three bank certified cheques totaling N4.5 million drawn upon the defendant bank at its Moloney Steet Branch Lagos, and payable to the plaintiff had dishonoured the said cheques upon presentation for payment on 12th June 1989 by the plaintiff.
In answer to the plaintiffs claim, the defendant sought to make the 2nd respondent/third party answerable to this action by filing its defence and applying to the trial Court for leave to issue and serve a Third Party Notice on SCOA Nigeria Limited, which application was granted, whereby the 2nd respondent was joined to this suit as a Third Party at the trial Court. See pages 27 and 32 to 37 of the Record of appeal.
The 2nd respondent as the Third Party at the trial Court joined issues with the plaintiff by filing statement of defence to the action. Its defence is contained in pages 93 – 97 of the Record of Appeal.
The relevant pleadings at the trial Court are:
(i) The plaintiff’s Amended Writ of Summons dated 10th April 1990 contained in pages 69 – 71 of the Record of Appeal.
(ii) The plaintiffs Amended Statement of Claim dated 10th April, 1990 contained on pages 72 – 76 of the Record of Appeal.
(iii) The third party’s 1st Amended Statement of Defence dated 19th June, 1990 contained in pages 93 – 97 of the Record of Appeal.
(iv) The defendant’s 1st Amended Statement of Defence dated 1st November 1990 contained in pages 103 – 105 of the Record of Appeal.
After the exchange of pleadings, the case proceeded to trial and judgment was delivered on 8th November 1991 dismissing the plaintiffs case against the defendant. Aggrieved the plaintiff appealed to the Court of Appeal or Court below while the 1st respondent/defendant cross-appealed and also filed a Respondent’s Notice.
The Court below heard the appeal and dismissed the appellant’s case hence the approach to the Supreme Court.
The background facts are captured in the lead judgment and so I shall refrain from repeating same save for necessary references as the occasion demands.
On the 11th day of October 2016 date of hearing, learned counsel for the appellant, Otunba Tunde Seriki adopted its Brief of Argument filed on 23/8/2005 and in it formulated two issues for determination which are, viz:
– Whether the lower Court was right in upholding the finding of no consideration made by the trial Court in a business transaction, the nature of which he could not decipher, which justified the 1st respondent (not being a party to the transaction) to refuse to honour its bank certified cheques in spite of the trial Court’s finding that the cheques were not misplaced?
– Is the Court of Appeal bound by its previous decisions?

Kenneth C. Ahia of counsel for the 1st respondent adopted and relied on the Brief of Argument settled by Adebola Yaya Esq. and filed on the 11/10/05 and in the Brief was drafted a single issue which is as follows:
Whether payment of the 1st respondent bank cheques (Exhibits P2 to P5) can be properly dishonoured and countermanded by and on the instruction of the 2nd respondent for lack of consideration in a questionable contract/transaction lacking in consensus ad idem.
J. O. Oloyede Esq. learned counsel for the 2nd respondent adopted the Brief of Argument settled by Thompson Yonwuren, filed on the 5/1/06 and deemed filed on the 29/11/06. In the Brief was drafted very simply, two issues which are thus:
A. Whether the drafts were counter mandable.
B. Whether the Court of Appeal had indeed, ignored its own previous decisions.

…………………….G…………………….

The relevant issue is whether the drafts are countermandable, whatever the circumstance Ogebe JCA (as he then was) had dismissed the same issue at the Court below on the ground that the arguments in respect thereof were purely academic and did not go to the substance of the appeal. This finding was not contested on appeal to this Court by the appellant and so it subsists. That being so there is really nothing on which the appeal before this Court can hang on. The question that arises and which answer is that such an academic, hypothetical journey cannot be embarked upon by this forum and so whatever that grievance which the appellant had hoped to be articulated and considered in this Court will remain unattended to for all time as it is now too late. See Imegwu v. Okolocha(2013) 9 NWLR (Pt. 1359) 347; Abe v. Unilorin (2013) 16 NWLR (1379) 183.
From the foregoing and the well stated lead judgment of my Lord, Nweze JSC, this appeal lacks merit and it is dismissed.
CLARA BATA OGUNBIYI, J.S.C.: My learned brother Nweze, JSC has obliged me with the draft copy of his lead judgment. I agree that the appeal is devoid of any merit and should be dismissed. The judgment appealed against is concurrent and from all indications I subscribe to the submission by the 1st respondent’s counsel that the lower Court was right when it endorsed the trial Court’s findings that the plaintiff/appellant gave no consideration for the 4 bank cheques.
The complaint lodged before us and against the judgment of the lower Court does not appear to be clear cut as it is neither here nor there.
The law is trite and well settled that grounds of appeal must spell out in clear terms the aspect of the judgment appealed and also lay the Particulars of complaint. In the absence of a focused ground of appeal, the appellate Court would be engaged in an exercise of futility.
My brother has resolved these issues raised exhaustively and I wish to adopt his judgment as mine. In the same vein as the lead judgment, I also dismiss the appeal as lacking in merit and I abide by all the orders made therein.


KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have read before now in draft the judgment of my learned brother CHIMA CENTUS NWEZE, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal lacks merit and should be dismissed.
I agree with my learned brother, that the Court below having found at page 263 of the record that the issues formulated by the appellant did not go to the substance of the appeal and were therefore academic, had nothing to determine, as it is trite law that Courts do not expend valuable judicial time and energy on academic issues. I observe that even though this issue was raised and argued as a preliminary issue in paragraphs 2.1.0 to 2.1.7 of the 1st respondent’s brief, learned counsel for the appellant did not deem it necessary to file a Reply brief in response thereto. I agree that the findings of the Court below at pages 263 – 265 of the record, which followed its observation on the academic nature of the appeal, amounted to obiter dicta, which cannot form the basis of an appeal. See: U.T.C. Nig. Ltd. V. Pamotei (1989) 2 NWLR (pt.103) 244: Saude V. Abdullahi (1989) 4 NWLR (Pt.116) 387 @ 431 B: Olufeagba V. Abdul-Raheem (2009) 18 NWLR (pt.1173) 384 @ 426 E.
For these and the more detailed reasons advanced in the lead judgment I also dismiss this appeal as lacking in merit. I affirm the judgment of the lower Court and abide by the order for costs.
Appeal dismissed.

The Defendant now Appellant, without filing statement of defence, after filing memorandum of appearance on 13/11/2000 and in apparent response to the Motion on Notice for Judgment filed by the Plaintiff at the trial Court, came up with a Notice of Preliminary Objection to the case against it in the following terms:-

“Take Notice that this Honourable Court shall be moved on Wednesday the 28th day of February, 2001 at
9 O’clock in the fore noon or so as Counsel for the Defendant/Applicant shall be heard for an order striking out this suit in its entirely for lack of jurisdiction of this Honourable Court on the grounds stated in the schedule herein:-

The Defendant/Applicant shall rely on all Court processes already filed –

SCHEDULE

1. The cause of action being an Insurance Policy on the alleged stolen vehicle, the subject matter is outside the jurisdiction of this Honourable Court.

2. The Civil jurisdiction of this matter now lies with the Federal High Court by virtue of Part XII Insurance Act No. 2 1997.”

The facts in support of the Preliminary Objection contained in the affidavit in support, reveals that the Plaintiff insured a Toyota Land Cruiser Prado Jeep in 1998 with the Defendant under an Insurance contract policy cover of third party, fire and theft. It was the case of the Plaintiff on pleadings that the insured vehicle was stolen during the currency of the contract of Insurance on the policy issued to the Defendant. That is to say, the subject of the Plaintiffs claim was based on insurance contract.

After giving the parties a hearing on the Preliminary Objection, the learned trial Judge in a considered Ruling delivered on 17/7/2002, dismissed the Defendant’s Objection and held that the High Court of Imo State was vested with the jurisdiction to entertain the Plaintiff’s action. Being dissatisfied with the decision of the trial Court, the Defendant by a Notice of Appeal dated 17/7/2002, the same date the ruling dismissing the Preliminary Objection was given, appealed to the Court of Appeal Port-Harcourt Division against the decision of the trial Court. After hearing the Parties through their respective learned Counsel on the Appellant’s and Respondent’s briefs of argument, the Court of Appeal in a split Judgment of 2 to 1, dismissed the appeal and affirmed the decision of the trial Court that the claims of the Plaintiff/Respondent was within the jurisdiction of the trial Court. That Judgment of the Court of Appeal was delivered on 3/5/2007.

The Defendant/Appellant was still aggrieved with the Judgment of the Court of Appeal against it and therefore decided to challenge the same through the leave of this Court granted to it on 12/5/2010, resulting in filing a Notice of Appeal containing one ground of appeal giving rise to the sole issue of jurisdiction argued in the Appellant’s brief of argument. The issue which was also adopted by the Respondent in the Respondent’s brief of argument reads –

“Whether having regard to Section 251(1) and 272 of the Constitution of the Federal Republic of Nigeria
1999 and Section 73 and 97 of the Insurance Act No. 2 of 1997, the High Court of Imo State is vested with jurisdiction to entertain this suit.”

In support of this issue learned Counsel to the Appellant referred to the statement of claim of the Plaintiff at pages 75 – 78 of the record and restated the law that it is that statement of claim which determines the jurisdiction of the trial Court. Learned Counsel observed that the statement of claim of the Plaintiff before the trial Court shows that the central issue of the Plaintiff’s claim was the determination of the rights of the Respondent/Plaintiff under and by virtue of the Insurance Contract between the Respondent and the Appellant. After quoting the entire provisions of Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999 and noting that the provisions having started with the words ‘Notwithstanding” which have been given judicial interpretation in the case of N.D.I.C. VS OKEM ENTERPRISES LIMITED (2004) 4 SC (Part.11) 77 at 111 – 113, learned counsel submitted that where that term is used in a Section of a statute, it is meant to exclude an impinging or impending effect of any other provision of a statute or other subordinate Legislation so that the said Section may fulfill itself. Therefore, the learned Counsel emphasized that the term as used in section 251(1) of the 1999 Constitution, no provision of that Constitution shall be capable of undermining the Section. Counsel placed further reliance on the case of LADOJA VS. INEC & 30 ORS (2007) 7 SC.99 at 161, in support of the position of the law that Section 272 of the 1999 Constitution which vests the High Court of Imo State with jurisdiction can impede or impinge the provisions of Section 251 of the same Constitution because Section 272(1) of the 1999 Constitution is subject to the provisions of Section 251(1) (a-r) of the same Constitution which conferred exclusive jurisdiction on those matters, on the Federal High Court, thereby ousting the jurisdiction of the High Court granted by Section 272 of the Constitution. That the National Assembly having exercised its powers under Section 251 (a-r) to give the

…………………….B…………………….

Federal High Court additional jurisdiction in the Insurance Act No. 2 of 1997, the court below was wrong in holding that the Imo State High Court had jurisdiction in the claim of the Plaintiff/Respondent, the Insurance Act being an existing law by virtue of Section 315 of the 1999 Constitution. Making further reference to Section 232(1) of the 1999 Constitution which empowered the National Assembly to expand the Original jurisdiction of the Supreme Court which brought about the Additional jurisdiction – The Supreme Court of Nigeria Act CAP 5.16 Laws of the Federation of Nigeria, 2004 which expanded the jurisdiction of the Supreme Court in Sections 1, 2 and 3 of the Act, learned Counsel stressed that the Additional jurisdiction conferred by the National Assembly on the Federal High Court in Sections 73 and 97 of the Insurance Act No. 2 of 1997, was quite in order and therefore urged this Court to allow the appeal and declare that the Imo State High Court lacks jurisdiction to hear the Plaintiff’s/Respondent’s case.

For the Respondent, its learned Counsel started by observing that jurisdiction is the legal authority of a Court to adjudicate in a matter which is so fundamental to the determination of a case to the extent that it is regarded as the centre pin on which the entire litigation is hinged on and the blood that gives life to an action as stated by this Court in DINGYADI VS INEC (2011) 10 NWLR (Pt.1255) 347 at 390-391 and NDAEYO VS OGUNAYA (1977) 1 SC.11.
Learned Counsel further pointed out that no matter how well a matter is conducted, if the Court has no jurisdiction, the entire exercise is a nullity. Quoting the provisions of Section 212(1) of the 1999 Constitution spelling out the jurisdiction of the High Court, Counsel argued that the jurisdiction of High Court as stated in the section is limited only to the subject matters excluded by Section 251 of the Constitution and other provisions of the Constitution in Section 254 giving exclusive jurisdiction to National Industrial Court in matters stated therein.

Relying on several decisions including TRIUMPH ASSURANCE CO. LTD VS. FADLALLAH SONS LTD. (2000) 1 NWLR (Pt.640) 294 at 301 and C.G.G. (NIG.) LTD VS OGU (2005) 8 NWLR (Pt. 927) 366 at 381-382 and 385, learned Counsel stressed that in the determination of jurisdiction of a Court, what the law enjoins the Court to look at is the statement of claim of the Plaintiff which in the present case relates to a claim on simple contract of insurance between the insurer and the insured for indemnity and that several of such disputes had been heard and resolved in the High Court as in the case of LEADWAY ASSURANCE CO. LTD. VS J.U.C. LTD. (2005) 5 NWLR (Pt.919) 539. Counsel therefore pointed out that there was nothing in Section 251(1)(a) – (s) of the 1999 Constitution which conferred exclusive jurisdiction on the Federal High Court to hear and determine causes/and/or claims on insurance and simple contract on insurance having regard to the case of ADELAKAN VS. ECU-LINE NV (2006) 12 NWLR (Pt.993) 33 at 52.

As for the argument of the Appellant that the Insurance Act of 1997 had vested exclusive jurisdiction on the Federal High Court on Insurance matters, learned Counsel replied that there is nothing in the Insurance Act 1997, to support the argument of the Appellant’s Counsel and therefore urged this Court to resolve the sole issue in this appeal against the Appellant and dismiss the appeal.

The single issue arising for determination in this appeal is whether having regard to the provisions of Sections 251(1)(a)-(s) and 272(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Sections 73 and 97 of the Insurance Act No. 2 of 1997, the Court below was right in the majority judgment that the High Court of Justice of Imo State was vested with jurisdiction to hear and determine the Plaintiff’s/Respondent’s claim arising from a simple contract of insurance. The Law is indeed well settled as correctly argued by the learned Counsel to the Parties in their respective briefs of argument that jurisdiction of a trial Court is determined by the Plaintiff’s claim as endorsed in the writ of summons and the statement of claim. See ADEYEMI VS OPEYORI (1976) 9-10 SC.31; MUSTAPHA VS GOV. OF LAGOS STATE (1987) 2 NWLR (Pt.58) 539; TUKUR VS GOVERNMENT OF GONGOLA STATE (1989) 4 NWWL (Pt.117) 592 and O.H.M.B. VS GARBA (2002) 14 NWLR (Pt.788)538. Thus in the present case, the claim of the Plaintiff/Respondent as earlier stated in this judgment, relates to simple contract insurance claim. Close examination of Section 251(1)(a)-(s) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), does not show any where that jurisdiction to entertain a claim based on simple contract of insurance was vested exclusively on the Federal High Court as claimed by the Appellant. That argument therefore does not support the case of the Appellant. As for the argument of the Appellant that additional jurisdiction had been vested on the Federal High Court by the Insurance Act of 1997, Section 251(s) relied upon by the Appellant reads –
“251(1) …
(s) Such other jurisdiction Civil or Criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.”
It is the case of the Appellant that based on the above provisions of the 1999 Constitution, the National Assembly had conferred additional exclusive jurisdiction on the Federal High Court on all civil claims arising from Insurance Contract by virtue of Sections 73 and 91 of the Insurance Act, 1997. The provisions of Sections 73 and 97 of the Insurance Act state –
“73 Settlement of claims –
(1) Where –
(a) Civil proceedings are taken in Court in respect of any claim relating to the death of or bodily injury to any person caused by or arising from the use of a motor vehicle covered by a policy of Insurance; and
(b) Judgment is obtained against the person insured; then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to this section pay to the person entitled to the benefit of such judgment the sum payable (including costs and interest on such sum) not later than 30 days from the date of delivery of the Judgment.”
I am afraid this Section 73 of the Insurance Act, has nothing to do with conferring jurisdiction on the Federal High

…………………….C…………………….

Court or any court for that matter and therefore it is not relevant in this case. As for Section 97 of the Act, it is an interpretation section which states –
“97 Interpretation.
In this Act, unless the context otherwise requires –
x
x
x
“Court” means Federal High Court.”
Looking through the entire provisions of the Act, it is only Section 80 that deals with provisions for jurisdiction and prosecution and it states-
“80 Jurisdiction and prosecution.
(1) An offence under this Act shall, subject to the Rules of Court, be tried in the Federal High Court and
reference in this Act to “Court” or the Court.” Shall be construed Accordingly.”
It is quite clear that the jurisdiction conferred on the Federal High Court by Section 80 of the Insurance Act No. 2 of 1997 is in respect of the trial of all Criminal offences committed under the Act. No civil jurisdiction at all has been conferred by the Act on the Federal High Court. The statute is quite plain therefore that it does not confer any exclusive or any jurisdiction at all for that matter on the Federal High to entertain and determine simple claims arising from contract of Insurance between the Parties to that contract. The Courts below were therefore right in their Judgments that by virtue of Section 272(1) of the 1999 Constitution of the Federal Republic of Nigeria, jurisdiction to entertain and determine all simple contracts of insurance claims between parties to such contracts remain with the High Courts of the States.
The law is trite that one of the ingredients for the exercise of jurisdiction by a Court include the requirement that the subject matter of the case is within the jurisdiction of the Court and that there is no feature in the case which prevents the Court from exercising its jurisdiction. See MADUKOLU & ORS VS NKEMDELIM & ORS (1962) 1 All NLR 587 at 594 and SKENCONSULT NIG.) LTD VS SECONDY UKEY (1981) 1 SC.6. The Respondent having shown that neither Section 251(1)(a)-(r) of the Constitution of the Federal Republic of Nigeria, nor the provisions of the Insurance Act No. 2 of 1997 by virtue of Section 251(1)(s) conferred exclusive or additional jurisdiction to entertain simple claims on Insurance contracts on the Federal High Court, the subject matter of such claims remains under the jurisdiction of the state High Courts under Section 272(1) of the 1999 Constitution.

The law is also well settled that the question of jurisdiction is so fundamental that the adjudicating Court should determine the issue first before embarking on any proceedings for hearing on the merit. See KATTO VS CENTRAL BANK OF NIGERIA (1991) 9 NWLR (Pt.214) 126. In the final result, the Appellant having failed to show that the subject matter of the case of the Plaintiff/Respondent now pending at the trial Court is outside the jurisdiction of the trial or that the civil jurisdiction of the insurance claim now lies with the Federal High Court by virtue of Section 73 and 97 of the Insurance Act No. 2 of 1997, the appeal must fail.

This appeal therefore lacks merit and the same is hereby dismissed. There shall be N100,000.00 costs to the Respondent against the Appellant.

JOHN AFOLABI FABIYI, J.S.C.: I have had a preview of the judgment just delivered by my learned brother – Mahmud Mohammad, CJN. I agree with the reasons therein advanced to arrive at the conclusion that the appeal lacks merit and warrants an order of dismissal.

This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division (the court below) delivered on 23rd May, 2007. Therein, the decision of the trial High Court, Owerri, Imo State (the trial court) delivered on 17th July, 2000 was affirmed by a majority judgment of 2.1.

The Ruling of the trial court was in respect of a Notice of Preliminary objection raised by the appellant challenging the jurisdiction of the trial court to hear and determine the respondent’s/plaintiff’s claim in the Writ of Summons/Statement of Claim for the sum of N6,000,000.00 (Six Million Naira) from the appellant; being the insured value of his stolen vehicle less 5% which the respondent insured with the appellant and damages for negligence.

The appellant has, by the leave of this court granted on 10th May, 2010, filed its Notice of Appeal dated 10th June, 2010 to appeal against the judgment of the court below.

The sole issue formulated for a due determination of the appeal by the appellant which was adopted by the respondent reads as follows:-

“Whether having regard to Section 251(1) and Section 272 of the Constitution of the Federal Republic of
Nigeria 1999 (CFRN 1999) as amended and Section 73 and 97 of the Insurance Act No 2 of 1997 the High Court of Imo State is vested with jurisdiction to entertain the suit.”

Let me state it briefly that jurisdiction which is the authority a court has to decide matters that are litigated before it is very crucial in the process of adjudication. As it is very fundamental, it should be determined first and at the

…………………….D…………………….

earliest opportunity. If a court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. A defect in competence is not only intrinsic but also extrinsic to the entire process of adjudication. See: Madukolu v. Nkemdilim (1962) 2 SCNLR, 341; Oloba v. Akereja (1988) 3 NWLR (Pt.84) 508.

The next relevant point in this appeal is that in determining issue of jurisdiction, the court looks at the Writ of Summons and the Statement of Claim of the plaintiff. This is so since it is the plaintiff who initiated his complaint before the court. Refer to the cases of Triumph Assurance Co. Ltd. v. Fadlallah & Sons Ltd. (2000) 1 NWLR (Pt.640) 289 at 301; NDIC v. C.B.N (2000) All FWLR (Pt.99) 1021 and Mustapha v. Gov. of Lagos State (1987) 2 NWLR (Pt.58) 539 at 591.

As can be gathered from the Writ of Summons and the Statement of Claim, the plaintiffs suit is in respect of a simple claim on insurance contract. It appears that this point is not in dispute.

The appellant appears to be trying to cling tenaciously to the provision: of Section 251(1)(a)-(s) to assert that the trial High Court has no jurisdiction in this matter. The stated Section provides as follows:-

“251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matter – (a) – (s).”

A careful perusal of matters expressly stated in (a) to (r) shows that there is no provision for the Federal High Court to hear and determine Insurance Claims.

At page 83 of the record, Rhodes-Vivour, JCA (as he then was) in a refined manner, stated as follows:

“In the interpretation of such provisions what is not said is not intended.”

I wish to further expand same at this auspicious moment. Let me bring to the fore at this point the expressio unius est exclusio alterius Rule which means the express mention of one thing in a statutory provision, as herein – the Constitution.- the grundnorm, automatically excludes any other stipulation which would otherwise have been applied by implication. See Ogunyiya v. Okudo (1979) 6-9 SC 32, PDP v. INEC (1999) 11 NWLR (Pt.626) 200; Buhari v. Dikko Yusuf (2003) 14 NWLR (Pt.841) 446, Udoh v. Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt.304) 139 and Halsbury’s Law of England 4th Edition, paragraph 876.

In short, it is clear that a simple insurance contract matter does not fall within the Jurisdiction of the Federal High Court. It is not expressly imbued with jurisdiction to entertain such a matter. The decision of this court in Adelekan v. ECU Line NV (2006) 12 NWLR (Pt.993) 33 at 52 is clear on the point. This court pronounced thus:-

“that provisions of Section 251 of the Constitution of the Federal Republic of Nigeria 1999 are clear and unambiguous. It is the Section that confers jurisdiction on the Federal High Court, which jurisdiction clearly does not include dealing with case of simple contract or damages for negligence.”

The appellant also attempted to hide under the umbrage of the provision of Section 251(1) (s) CFRN, 1999. In the lead judgment it is shown that the provisions of the Insurance Act No. 2 of 1997 did not confer exclusive or additional jurisdiction to entertain simple claims on Insurance Contracts on the Federal High Court. The subject matter of such claims remains under the jurisdiction of the State High Courts under Section 272(1) 1999 CFRN. I agree with; and respectfully adopt same.

For my above remarks and of course the lucid reasons adumbrated by my Lord – Hon. CJN, I too, feel that the appeal lacks merit and it is hereby dismissed. I abide with the order relating to costs; as well.

SULEIMAN GALADIMA, J.S.C.: I have been obliged a copy of the leading judgment of my learned brother MOHAMMED CJN, just delivered. I agree with him that the appeal lacks merit and should be dismissed. The appeal that is being dismissed emanated from the decision of the Court of Appeal, Port Harcourt Division, delivered on 3/5/2007 affirming the decision of the High Court of Imo State. The High Court held that it had jurisdiction to entertain plaintiff’s (now Respondent) claim of N6 Million as general damages for negligence in respect of the loss of its Toyota Land Cruiser Prado Jeep which was stolen by armed robbers. The said Jeep was insured with the Appellant herein.

At the trial High Court the Defendant (now the Appellant), without filing any statement of defence, after filing memorandum of Appearance on 3/5/2000, and in response to the motion On Notice for Judgment filed by the Respondent at the trial Court came up with a Notice of Preliminary objection on page 14 of the record in the following terms:

“TAKE NOTICE that this Honouarable Court shall be moved on Wednesday the 28 day of February, 2011 at 9 o’clock in the forenoon or so as counsel for the Defendant/Applicant shall be heard for an order striking out this suit in its entirely (sic) meaning “entirety,” for lack of jurisdiction of this Honouroble Court on the grounds stated in

…………………….E…………………….

schedule herein.

The Defendant/Applicant shall rely on all court processes already filed.
SCHEDULE:
1. The cause of action being an insurance policy on the alleged stolen vehicle, the subject matter is outside the jurisdiction of this Honourable Court.

2. The civil jurisdiction of this matter lies with the Federal High Court by virtue of Part XII Insurance Act, No. 2, 1997.”

The summary of facts in support of the objection as contained in the supporting affidavit is as follows: That the plaintiff insured his Toyota Land Cruiser Prado Model Jeep in 1988 with the Defendant in Insurance Company, under an Insurance policy Cover of a third party, fire and theft. That the vehicle was stolen during the currency of the contract of Insurance on the Policy issued to the Defendant. That the plaintiff’s claim was based on insurance contract.

Without much ado, after hearing the argument of parties on the preliminary objection, the learned trial judge in his considered Ruling dismissed the objection and held that the High Court of Imo State had jurisdiction to entertain the plaintiff’s action.

Dissatisfied with this decision, the Defendant appealed to the Court of Appeal which by majority decision affirmed the decision of the Imo State High Court which held that it had jurisdiction to entertain the plaintiff’s claim of N6 Million general damages for loss of its Toyota Land Cruiser Jeep.

This is a further appeal against the majority decision of the court below by the Appellant who, raised a sole issue from its one ground of appeal. The issue raised by the Appellant, which the Respondent adopted, reads;

“Whether having regard to section 251(1) and 272 of the Constitution of the Federal Republic of Nigeria 1999 and sections 73 and 97 of the insurance Act No. 2 of 1997, the High Court of Imo State is vested with jurisdiction to entertain the suit.”

It is settled that in the determination of jurisdiction of a court what the court is enjoined to look closely at are Writ of Summons and the statement of claim of the plaintiff where the action is commenced by a writ of summons or where it is commenced by Originating Summons, the Summons and the affidavit filed in support of the Summons. See ADEYEMI V. OPEYORI 1976, 9 – 10 SC.312, APGA v. ANYANWU (2014) 2 SC. (Pt.1) 1. In the case at hand the plaintiff’s claim relates to simple Insurance Contract.

I have closely examined the provisions of Section 251(1) (a) – (s) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). No where it is shown that jurisdiction to entertain a claim based on simple contract of Insurance was exclusively vested in the Federal High Court, as contended by the Appellant herein. This is a clear misconception. Appellant also argued that Section 73 and 97 the Insurance Act of 1997 vests on the Federal High Court additional jurisdiction on all civil claims arising from Insurance contract. Now what are the purport of the two foregoing Sections. First Section 73 of the Act which provides:

“73 settlement of claims –

(1) Where –

(a) Civil proceedings are taken in Court in respect of any claim relating to the death of or bodily injury to any person (caused by or arising from the use of a motor vehicle covered by a policy insurance; and

(b) Judgment is obtained against the person incurred; then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to this Section pay to the person entitled to the benefit of such judgment the sum payable (including costs and interest on such sum) not later than 30 days from the date of delivery Judgment.”

I disagree absolutely with the learned counsel for the Appellant that the National Assembly can and has by enacting Sections 73 and 97 of the Insurance Act (supra) pursuant to its powers under and by virtue of Section 251 (1) of the Constitution of the Federation of Nigeria, 1999 to include Insurance Matters and thereby ousted the jurisdiction of the State High Court in that regard. It is also of no moment, his argument that by the combined effect of Sections 251 and 315 of the 1999 Constitution and the aforesaid Sections 73 and 97 of the Insurance Act (supra). Insurance matters as in the present action are within the exclusive jurisdiction of the Federal High Court. In fact Section 97 is an interpretation Section. It defines the word “Court” used in the Act to mean “Federal High Court.”
Reading carefully the entire provisions of the Act, it is only Section 80 that provides for jurisdiction and prosecution.
It states thus:
“80. Jurisdiction and prosecution:
(1) An offence under this Act shall, subject to the Rules of Court, be tried in the Federal High Court and references

…………………….F…………………….

in this Act to “Court” or “the Court” shall be construed accordingly.
(2) Prosecution for offences under this Act shall be instituted before the Court in the name of the Federal Republic of Nigeria by the Attorney-General of the Federation or such officer in the Federal Ministry of Justice as he may authorize so to do, and in addition thereto, he may –
(a) After consultation with the Attorney-General of any State in the Federation, authorize the Attorney-General or any officer in the Ministry of justice of that State; or
(b) if a Court so directs or if the Commission so requests, authorize any other legal practitioner in Nigeria, to undertake any such prosecution directly or assist therein.
(3) The question whether any or what authority has been given in pursuance of sub-section (2) of this section shall not be inquired into by any person other than the Attorney-General of the Federation.
(4) A person accused of an offence under this Act shall be entitled to defend himself in person or by a person or his own choice who is a legal practitioner resident in Nigeria.”
I am also of respectful opinion that the jurisdiction conferred on the Federal High Court by Section 80 of the Insurance Act (supra) is a provision in respect of all criminal offence committed under the Act. No Civil Jurisdiction has been conferred by the Act on the Federal High Court.

In the circumstance, I also agree with my learned brother MOHAMMED CJN that the Imo State High Court has jurisdiction to entertain the Respondent’s claim. The judgment of the court below is accordingly affirmed. I abide by the order made as to costs.

Appeal dismissed.

NWALI SYLVESTER NGWUTA, J.S.C.: I had the privilege of reading in draft the lead judgment prepared and just delivered by my learned brother, Mohammed, CJN.

The lone issue in the appeal has been exhaustively dealt with by His Lordship. Not only do I agree with the reasoning and conclusion leading to the dismissal of the appeal for want of merit, I also adopt the sound reasoning and conclusions as mine. Consequently, I also dismiss the appeal as devoid of merit. I abide by order for costs.

MUSA DATTIJO MUHAMMAD, J.S.C.: I had a preview of the lead judgment of my learned brother Mahmud Mohammed CJN, just delivered. I entirely agree with his lordship that the appeal lacks merit and dismiss same. I abide by the consequential orders contained in the lead judgment including the order on costs.

CLARA BATA OGUNBIYI, J.S.C.: The appeal is against the judgment of Port-Harcourt Division of the Court of Appeal delivered on the 3rd day of May, 2007. The judgment arose from the appeal against the ruling of the High Court of Imo State wherein the appellant challenged the jurisdiction of the court to hear and determine the Respondent’s (plaintiff’s) claim in the writ of summons for indemnity and damages in the sum of N6,000,000.00 (Six Million Naira) for the loss of the Respondent’s vehicle insured with the appellant.

The High Court after hearing arguments of counsel delivered a considered ruling and dismissed the appellant’s preliminary objection and held that the High Court of Imo State is vested with jurisdiction to entertain the action. An appeal to the Lower Court was dismissed and the trial court’s decision was affirmed; hence a further appeal now before us and raises a lone issue as follows:-

“Whether having regards to Sections 251(1) and 272 of the Constitution of the Federal Republic of Nigeria, 1999 and Sections 73 and 97 of the Insurance Act No. 2 of 1997, the High Court of Imo State is vested with jurisdiction to entertain this suit.”

The jurisdiction of the State High Court and Federal High Court are clearly spelt out in the relevant provisions of Sections 272(1) and 251(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

The use of the phrase:-

“Subject to the provisions of Section 251 of the Constitution and other provisions of this Constitution”

(emphasis supplied)

in Section 272(1) is very crucial and pre-supposes that the jurisdiction of the State High Court is limited only to the subject matters excluded by Section 251 and other provisions, inclusive of the jurisdiction conferred on the National Industrial Court established under Section 254(A)(B) and (C) of the said Constitution. The exclusive jurisdiction and its limitation in respect of the Federal High Court is also clear cut in Section 251(1) of the Constitution. The general principle of law is well established that the jurisdiction of a court is determined by the plaintiff’s statement of claim which is paramount. Judicial authorities are well entrenched in the cases of Triumph Assurance Co. Ltd v. Fadlallah & Sons Ltd. (2000) 1 NWLR (Pt.640) 28 – 94 at 301; NDIC vs. C.B.N. (2000) All FWLR (Pt.99) 1021 and C.G.G. (Nig) Ltd. V. Ogu (2005) 8 NWLR (Pt.927) 366 at 381- 382.

…………………….G…………………….

With reference made to the record of appeal, the statement of claim reveal the plaintiff is a client of the defendant/appellant in terms of insurance policy taken out over and in respect of his vehicle which was subsequently stolen and hence the simple claim in Insurance contract being the subject matter of this appeal.

It is the appellant’s argument that the National Assembly have by enacting Section 73 and 97 of the Insurance Act No. 2 of 1997, pursuant to its powers under and by virtue of Section 251(1) of the 1999 Constitution, expanded and extended the exclusive jurisdiction of the Federal High Court to include Insurance matters and thereby ousted the jurisdiction of the State High Courts in that regard. The verification and tenancy of this argument will only be authenticated when Sections 73 and 97 of the Insurance Act is put on the balance. The said two provisions have been plaintiff’s claim before the trial court is a claim in simple contract between the insurer and the insured for indemnity. It is meant for unforeseen future occurrence and not for an incident that has occurred. See Leadway Assurance Co. Ltd. Vs. J.U.C. Ltd. (2005) 5 NWLR (Pt.919) 539 and Ajaokuta Steel Co. Ltd. Vs. Corporate Insurers Ltd. (2004) 16 NWLR (Pt.899) 369.

Section 251(1) of the Constitution is very clear and not ambiguous. It is not part of the law to import into the Section, a speculation which not intended to be a part thereof. See the case of Adelekan Vs. Ecu-line N.V. (2006) 12 NWLR (Pt.993) 33 at 52 where this court said:-

“that provisions of Section 251 of the Constitution of the Federal Republic of Nigeria 1999 are clear and unambiguous, It is the Section that confers jurisdiction on the Federal High Court, which jurisdiction clearly does not include a case of simple contract or damages for negligence.”

The foregoing principle was enunciated in the earlier case of Onuorah v. K.R.P.C. LTD. (2005) 6 NWLR (Pt.921) 393.

On a careful perusal of Sections 73 and 97 of the Insurance Act, the two do not appear to come within the contemplation held by the appellant. In otherwords, while Section 73 is in respect of settlement of claims, Section 97 is an interpretation Section and they both have no bearing with simple claims in Insurance contracts. Reliance on the provisions does not therefore aide the appellant’s case. Making of a legislation must be specific and clearly spelt out and must leave no one in doubt on the expansion of the Federal High Court in Insurance matters. The absence of such clear enactment in Section 73 and 97 of the Insurance Act as well as Section 251 of the Constitution is an indication that claims in contract are excluded. The argument advanced by the appellant in the circumstance does not hold water therefore. The two Lower Courts are on firm ground that the jurisdiction of the State High Court under Section 272(1) remains resolute and applicable.

The appeal is devoid of any merit and I also dismiss same in terms of the lead judgment.

My learned brother Mahmud Mohammed, CJN has resolved the lone issue comprehensively. I therefore adopt his judgment as mine and also dismiss the appeal as lacking in merit. I further abide by the order made as to costs.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: This is an appeal against the majority decision of the Court of Appeal, Port Harcourt Division, delivered on 3/5/2007 affirming the decision of the High Court of Imo State, Owerri, which held that the High Court of Imo State had jurisdiction to entertain the plaintiff’s (respondent’s) claim for N6 Million general damages for negligence in respect of the loss of its Toyota Land Cruiser Prado Jeep stolen by armed men, which was insured by the Appellant.

The Appellant (as defendant) filed a preliminary objection dated 19/2/2007 seeking an order striking out the suit for lack of jurisdiction on the following grounds:

1. The cause of action being an insurance policy on the alleged stolen vehicle, the subject matter is outside the jurisdiction of this Honourable Court.

2. The civil jurisdiction of this matter now lies with the Federal High Court by virtue of Part XII Insurance Act No. 2 of 1997.

The law is settled that in determining the jurisdiction of the court in a civil matter, the processes to be considered are the writ of summons and statement of claim where the action is commenced by a writ of summons or where it is commenced by originating summons, the summons itself and the affidavit in support thereof. See: Adeyemi Vs Opeyori (1976) 9 – 10 SC (Reprint) 18; A.G. Federation vs. Guardian Newspapers Ltd & Ors (1999) 9 NWLR (Pt.618) 187; A.G. Anambra State Vs A.G. Federation (2007) 12 NWLR (Pt.1047) 1; APGA Vs. Anyanwu (2014) 2 SC (Pt.1) 1.

In the instant case the plaintiff’s claim is for a right to indemnity under a contract of insurance. The applicable law in respect of a cause or matter is the law in force at the time the cause of action arose. See: Uwaifo Vs A.G. Bendel State (1982) 7 SC (Reprint) 58; A.G. Lagos State vs. Dosunmu (1989) 3 NWLR (Pt.111) 552; Utih vs. Onoyivwe (1991) 1 NWLR (Pt.166) 166. By paragraph 8 of the statement of claim the cause of action arose on 27/7/1999, therefore the Constitution of the Federal Republic of Nigeria 1999, which came into force in May 1999 is the applicable law.

…………………….H…………………….

It is the Appellant’s contention on the one hand, that the subject matter, being insurance, is within the exclusive jurisdiction of the Federal High Court by virtue of the Insurance Act No. 2 of 1997 (Cap. 117 Laws of the Federation of Nigeria (LFN) 2004) and that the said Act is an existing law within the meaning of Section 315 of the 1999 Constitution. The Respondent on the other hand contends that it is a matter of simple contract, which the State High Court has jurisdiction to entertain. He argued that the Federal High Court is not vested with exclusive jurisdiction to hear insurance matters.

For a clear appreciation of the issue I deem it expedient to consider some of the relevant Constitutional provisions.

Section 272 (1) of 1999 Constitution confers jurisdiction on the State High Court “to hear and determine any civil proceedings in which the existence or extent of a legal right, power/duty, liability, privilege, interest, obligation or claim is in issue… “ subject to the provisions of Section 251 and other provisions of the Constitution.

Section 251(1) provides: “Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters…” It goes on in sub-paragraphs (a) – (r) to specifically set out the causes and matters in which such exclusive jurisdiction shall be exercised. In addition, pursuant to sub-paragraph(s), “such other jurisdiction, civil or criminal and whether to the exclusion or any other court or not as may be conferred upon it by an Act of the National Assembly.”

Giving the words used in the above provisions their natural and ordinary meaning, it follows that the jurisdiction of the High Court of a State is clearly ousted in respect of the specific matters enumerated in Section 251 (1) (a) – (r). It is significant to note that nowhere in Section 251 (1) (a) – (r) is insurance mentioned. In other words, on the face of it there is nothing in those provisions that prevents a State High Court from exercising jurisdiction in respect of contracts of insurance or insurance related matters.

There is no doubt that by Section 251(1) (s) of the Constitution, the jurisdiction of the Federal High Court as enumerated in subparagraphs (a) – (r) may be extended by an Act of the National Assembly. Furthermore, by the combined effect of Section 4(1) and (2) and Paragraph 33 of the 2nd Schedule Part 1 of the Constitution the National Assembly is empowered to make laws relating to insurance. By virtue of Section 315 (1) (a) of the Constitution the Insurance Act No. 2 of 1997 is an existing law, not having been repealed before the enactment of the 1999 Constitution.

Under the Insurance Act, Sections 30, 32 and 73 provide for the jurisdiction of the Federal High Court in some matters i.e. sanction of the court required for the amalgamation of certain types of insurers; petition for winding up; civil proceedings in respect of a claim relating to the death of or bodily injury to any person caused by or arising from the use of a motor vehicle covered by a policy of insurance. None of these provisions is applicable in the present case. Throughout the Act, there is no provision conferring exclusive jurisdiction on the Federal High Court in Insurance matters.

As observed earlier, Section 251 (1) (a) – (r) of the Constitution does not confer exclusive jurisdiction on the Federal High Court in relation to Insurance matters. The issue to be determined therefore, is whether the Insurance Act of 1997, being an existing law by virtue of Section 315 (1) (a) of the 1999 Constitution, confers such exclusive jurisdiction on the Federal High Court. Notwithstanding the fact that in Section 97 of the Act, “Court” is interpreted to mean the Federal High Court, the Sections of the law, which refer to the court do not confer exclusive jurisdiction on the Federal High Court nor oust the jurisdiction of the State High Courts to entertain matters relating to simple contracts of insurance. In other words, by virtue of Section 272(1) of the Constitution, the State High Courts are fully competent to hear and determine claims arising from simple contracts of insurance.

Where it is intended to confer exclusive jurisdiction on a court, the relevant law must expressly provide for it. An example of such express provision is to be found in the Supreme Court (Additional Original Jurisdiction) Act Cap.16 LFN 2004, which specifically expanded the original jurisdiction of the Supreme Court. The National Assembly has not enacted any law to expand the exclusive jurisdiction of the Federal High Court beyond what is prescribed in Section 251 (1) (a) – (r) of the Constitution.

I therefore agree with my learned brother, MAHMUD MOHAMMED, CJN whose lead judgment I was privileged to read before now, that the Imo State High Court has jurisdiction to entertain the claim. For the above stated reasons and the more detailed reasons well articulated in the lead judgment, I also find no merit in this appeal and dismiss it accordingly. I affirm the decision of the Lower Court and abide by the order for costs.